Citation Nr: 1503620
Decision Date: 01/26/15 Archive Date: 02/09/15
DOCKET NO. 10-18 149A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina
THE ISSUES
1. Entitlement to service connection for a dental disorder.
2. Entitlement to a compensable rating for eczema, onychomycosis and tinea pedis.
3. Entitlement to service connection for neuropathy of the right upper extremity, to include as secondary to service-connected status-post right distal clavicle resection with chronic rotator cuff tendinitis.
REPRESENTATION
Veteran represented by: Veterans of Foreign Wars of the United States
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
T. Carter, Associate Counsel
INTRODUCTION
The Veteran served on active duty from June 1974 to December 1986.
This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina.
In October 2011, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record.
In December 2011, December 2013, and July 2014, the Board remanded the issue of entitlement to service connection for neuropathy of the right upper extremity for further development. The case has since been returned to the Board for appellate review. As will be discussed below, the Board must remand this issue again because the file does not reflect substantial compliance with the prior remand directives. Stegall v. West, 11 Vet. App. 268 (1998).
This appeal was processed using the Virtual Benefits Management System (VBMS). The Virtual VA electronic claims file also contains additional documents that may be pertinent to the present appeal, including VA treatment records dated from August 2000 to May 2013. Accordingly, any future consideration of the case should take into consideration the existence of these electronic records.
The issue of entitlement to a total disability rating based on individual unemployability (TDIU) has been raised by the record in November 2014 VA Form 27-0820 and VA Form 21-8940, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over the matter, and the issue is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2014).
The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required.
REMAND
A remand is required for the issues of entitlement to service connection for a dental disorder and entitlement to an increased evaluation for eczema, onychomycosis, and tinea pedis for issuance of a statement of the case (SOC). The RO denied these claims in a November 2014 rating decision. In subsequent November 2014 statements, the Veteran and his representative submitted a notice of disagreement (NOD) for the denial of these issues. Where the record contains a NOD as to an issue, but no SOC, the issue must be remanded to the originating agency to issue an SOC and to provide the claimant an opportunity to perfect the appeal. See Manlicon v. West, 12 Vet. App. 238 (1999). In this case, a SOC was not issued for these issues. Therefore, the Board finds that a remand is required.
A remand is also required for the issue of entitlement to service connection for neuropathy of the right upper extremity because a review of the record shows that some of the prior directives from the December 2011, December 2013, and July 2014 remands were not completed. The United States Court of Appeals for Veterans Claims (Court) has held "that a remand by this Court or the Board confers on the veteran or other claimant, as a matter of law, a right to compliance with the remand orders." Stegall, 11 Vet. App. at 271. As such, compliance with the terms of the remand is necessary prior to further appellate review, and if not, "the Board itself errs in failing to ensure compliance." Id.
In the December 2011 remand, the Board directed the AOJ to obtain a VA medical opinion to determine the nature and etiology of any neuropathy of the right upper extremity that may be present. The examiner was requested to identify all right upper extremity neurological disorders that have been present at any point during the pendency of the appeal. If the examiner determined that the Veteran had not had neuropathy of the right upper extremity at any point during the pendency of the appeal, he or she was requested to address the previous diagnoses of record, including moderate ulnar neuropathy localized to the right elbow, cervical radiculitis, right shoulder pain, right cervical facet joint syndrome, multilevel degenerative disc disease of the cervical spine, and degenerative stenosis of the cervical spine. For each diagnosis identified, the examiner was requested to "state whether it is at least as likely as not that the disorder is causally or etiologically related to his military service, including his shoulder surgery." If not, he or she was requested to comment "as to whether it is at least as likely as not that the disorder is either caused by or permanently aggravated by his service-connected status-post right distal clavicle resection with chronic rotator cuff tendinitis."
The Veteran was provided a VA peripheral nerves examination in January 2012. The examiner determined that there was no clinical or electrodiagnostic evidence of cervical radiculopathy or nerve impingement of the shoulder. Rather, the examiner noted that there was clinical electrodiagnostic evidence of mild to moderate right ulnar neuropathy at the elbow. The examiner opined that the right ulnar neuropathy at the elbow was not related to military service. However, the examiner did not address whether the right ulnar neuropathy was related to the Veteran's in-service right distal clavicle resection or whether it was either caused by or permanently aggravated by his service-connected status-post right distal clavicle resection with chronic rotator cuff tendinitis.
In December 2013, the Board remanded the case for a clarifying opinion for the purpose of determining the nature and etiology of any neuropathy of the right upper extremity that may be present. Specifically, the examiner was requested to "state whether it is at least as likely as not that the Veteran currently has neuropathy of the right upper extremity that is related to military service, to include his in-service right distal clavicle resection." In addition, he was requested to "also opine whether it is at least as likely as not that the Veteran's current neuropathy of the right upper extremity is either caused by or aggravated by the Veteran's service-connected status-post right distal clavicle resection with chronic rotator cuff tendinitis."
A March 2014 note associated with the Veteran's claims file stated, "[E]xaminer stated that there was no new change. All were answered on previous report[.]" The Board agrees with the Veteran's representative that the January 2012 VA examination report was clearly inadequate, and the requested opinions were not included in the examiner's report as claimed in the March 2014 correspondence. See April 2014 informal hearing presentation submitted by Veteran's representative.
In July 2014, the Board remanded the case for an additional clarifying opinion. Specifically, the examiner was requested to provide the same opinions as requested in the December 2013 remand directive, with the addition of a notation that the examiner "should address the Veteran's October 2011 hearing testimony in which he asserted that his right upper extremity neuropathy began immediately following the in-service shoulder surgery and had continued since service to the present."
An October 2014 addendum associated with the Veteran's claims file acknowledged review of the Veteran's hearing testimony in October 2011. The examiner also stated "[a]gain, I did not find clinical or electrodiagnostic findings to confirm the presence of a radiculopathy or any neuropathy in the right upper extremity." However, the Board notes that the examiner did not address the previous diagnoses of record. The requirement of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even where the disability resolves prior to the Secretary's adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). Therefore, a remand is necessary to obtain a clarifying opinion that is fully responsive to the remand directives below.
Accordingly, the case is REMANDED for the following actions:
1. The AOJ should issue a Statement of the Case to addressing the issues of entitlement to service connection for a dental disorder and to an increased evaluation for eczema, onychomycosis, and tinea pedis.
Thereafter, the Veteran should be given an opportunity to perfect an appeal by submitting a timely substantive appeal in response thereto. The AOJ should advise the Veteran that the claims file will not be returned to the Board for appellate consideration of these issues following the issuance of the statement of the case unless he perfects his appeal.
2. The AOJ should obtain a clarifying medical opinion from the VA examiner who conducted the January 2012 VA peripheral nerves examination. If he is not available or he is unable or unwilling to provide the requested opinions, another appropriate clinician should be asked to provide a clarifying medical opinion.
The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and statements.
It should be noted that the Veteran is competent to attest to observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation.
The examiner should identify any right upper extremity neurological disorder that has been present at any point since the Veteran filed his claim or within close proximity thereto. It should be noted that the requirement of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or at any point during the pendency of that claim (even if the disorder later resolves).
In determining whether the Veteran has had any right upper extremity neurological disorder during the pendency of the appeal, the examiner should consider that there has been evidence noting mild to moderate ulnar neuropathy localized to the right elbow, cervical radiculitis, right shoulder pain, right cervical facet joint syndrome, multilevel degenerative disc disease of the cervical spine, and degenerative stenosis of the cervical spine.
For any diagnosis of a right upper extremity neurological disorder identified, the examiner should state whether it is at least as likely as not that the disorder is related to the Veteran's military service, to include his in-service right distal clavicle resection.
The examiner should also opine as to whether it is at least as likely as not that the current disorder is either caused by or aggravated by the Veteran's service-connected status-post right distal clavicle resection with chronic rotator cuff tendinitis.
In this context, "aggravation" is defined as a permanent worsening of the disability beyond its natural progression. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence of aggravation unless the underlying condition worsened.
(The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.)
A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review.
3. The AOJ should review the examination report and ensure that it is in compliance with this remand. If the report is deficient in any manner, the AOJ should implement corrective procedures.
4. After completing these actions, the AOJ should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs.
5. When the development has been completed, the issue of service connection for neuropathy of the right upper extremity, to include as secondary to service-connected status-post right distal clavicle resection with chronic rotator cuff tendinitis, should be reviewed by the AOJ on the basis of additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review.
The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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J.W. ZISSIMOS
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2014).